March 11, 2014

Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2014 NY Slip Op 50411(U))

Headnote

The court considered an order from the Civil Court of the City of New York, Queens County, which granted the defendant's motion for summary judgment dismissing the complaint. The main issue decided was whether the affidavits submitted by the defendant demonstrated that the denial of claim form had been timely mailed. The holding of the case was that the judgment was affirmed, with $25 costs. The court found that the plaintiff improperly raised the argument that the defendant's employees did not possess sufficient personal knowledge to demonstrate that the denial of claim form had been timely mailed. The court also found that the argument that one of the affidavits submitted by the defendant did not comply with CPLR 2309 (c) was waived.

Reported in New York Official Reports at Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2014 NY Slip Op 50411(U))

Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2014 NY Slip Op 50411(U)) [*1]

Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co.

2014 NY Slip Op 50411(U) [42 Misc 3d 149(A)]

Decided on March 11, 2014

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 11, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-124 Q C.

Eagle Surgical Supply, Inc. as Assignee of DORA FUENTES-POLANCO, Appellant,
against
Allstate Property & Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 17, 2011, deemed from a judgment of the same court entered December 14, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 17, 2011 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

On appeal, plaintiff argues that the affidavits submitted by defendant failed to establish that defendant’s employees possessed sufficient personal knowledge to demonstrate that defendant’s denial of claim form had been timely mailed. This argument is improperly raised for the first time on appeal.

Plaintiff further argues that one of the affidavits submitted by defendant in order to prove that the denial of claim form had been timely mailed should not have been considered because it did not comply with CPLR 2309 (c). However, that argument is raised for the first time on appeal, and is therefore waived (see Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008] Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 135[A], 2007 NY Slip Op 51611[U] [App Term, 2d & 11th Jud Dists 2007]). In any event, such defect is not fatal, as plaintiff was not prejudiced thereby (Matos v Salem Truck Leasing, 105 AD3d 916 [2013] Rivers v Birnbaum, 102 AD3d 26, 44 [2012]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014